His research examines methodological issues in legal philosophy as well as questions about the moral obligations associated with citizenship, with his recent work focussing on the nature of political obligations. Only if one knows what it is can one know whether an argument for it succeeds. However, it may be the case that the connection between law and morality is more deeply-rooted than the moral aims and moral claims theses suggest. Furthermore, even if it is accepted that there will be instances where society rejects the morality of a law, there is still an argument to be made that there is a moral obligation to comply with that immoral law. moral obligation to obey the law. Raz notes that the hardship caused in a minority of cases trumps the uncertainty that would prevail without law. Socrates’s understanding of legal obligation rests a lot on analogies with personal morality. The evidence laid out. Whether this pressure be a manifestation of disapproval from the public or the internal feelings of shame, remorse or guilt, this is what distinguishes being obligated from being obliged. In terms of meeting my objectives, which outlined earlier, I can say that I have successfully achieved all of those aims. The alleged moral obligation to obey arises from these independent obli-gations to act as the law requires. 2(3) Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. Between 24 March and 19 August 2020 27 Supreme Court judgments and 13 Privy Council judgments were delivered. Power changes hands democratically according to the rules of the country’s constitution, not as the result of force or war. Is it always morally wrong to violate a law and in doing so does one necessarily act badly? The police have already shown a willingness to interpret this provision narrowly, for example in the case of Ken Hinds, who was sent a warning by police after attempting to organise a protest march on behalf of his community interest group, Communities Against Violence. We can discuss it, therefore, only in the light of some general theory of moral obliga-tion. 2) (England) (Amendment) (No.4) Regulations 2020 (SI 2020/986)”, CLW/20/33/15, [11] Peter Yeoh, “Public health, economic health, and human rights: the great lockdown dilemma”, Comp. Pham), the courts would probably still continue to apply proportionality when individual rights are involved. The HRA has strengthened the protection of individual rights in many respects, such as the greater scope of rights that can be enforced against public authorities under s.6, the potent powers under ss.3 and 4, and the increased discussion about human rights. On the contrary, according to Finnis, the moral obligation necessarily follows from that satisfaction because it is law in its “fullest sense”. The recent months have been a very challenging time for the Supreme Court. So if our income taxes are used to support vital services, then we have a moral obligation to pay our income tax. The same can be seen in reverse with slavery in the US. [15] For example, police were very reluctant to break up Black Lives Matter demonstrations given that the police themselves were a prominent subject of the demonstrations, and this would likely aggravate the situation further. that states can have moral obligations,2 for if they could not, a fortiori they could not have a moral obligation to obey international law. Remarkably, as a result of the technical ability and hard work of the IT team and other support staff, the Supreme Court was able to hold its first virtual hearing on Tuesday 24 March. Unlike Elliott, Young sees s.4 as facilitating democratic dialogue between the courts and Parliament about human rights issues: the courts state their view but respect sovereignty by giving Parliament the final say. Because claimants could get Convention rights upheld in Strasbourg, the HRA arguably did not strengthen their rights protection. Should English criminal law approach omissions differently? Beyond this is the idea that law is, by nature, a moral endeavour and even where it is failing to accomplish its aims non-compliance with immoral laws undermines the authority of the legal system, promoting undesirable anarchy and is thus immoral. Abstract. However, the extent to which protection would be undermined is limited because common law rights evolve alongside the HRA: any rights dispute starts with the common law (Kennedy) and courts increasingly rely on common law rather than Convention rights (e.g. These motivations have no necessary links to morality, thus legal obligations conceptually, can exist independently of moral obligations. As Brexit comes to a close, Covid-19 has taken centre stage. For example, Moohan held (in 2014) that there is no common law right to vote analogous to that in the Convention. Only if one knows what it is can one know whether an argument for it succeeds. To answer, one must think about what follows from a moral obligation to obey the law being: (i) a moral obligation; (ii) a species of political obligation; (iii) a matter of obedience; and (iv) a matter of obedience to the law. Rawls’s principle of fair play is essentially a just and united social at 244, his claim apparently is about moral obligation. Different types of authority. The Conservative Party’s most recent pledge is to merely ‘update’ the HRA. Thanks for listening - any questions? Daly; Osborn). Throughout a hearing one member of the IT staff will monitor the hearing and a second will monitor the live feed. The lockdown made this impossible and, as a result, Lord Leggatt and Lord Burrows took their oaths in closed ceremonies in the presence of our President, Lord Reed, in the Library at the Supreme Court, while the other Justices all took part remotely by video-conference. Furthermore, judicial review of rights may arguably be more profound after the HRA because, when a Convention right is involved, proportionality rather than Wednesbury unreasonableness is applied. The Moral Prima Facie Obligation to Obey the Law. S.3 strengthens the protection of individual rights because its interpretive obligation is more far-reaching than the principle of legality – s.3’s common law counterpart. 4) Regulations 2020 (SI 2020/986), [2] Reg. 5 Health Protection (Coronavirus, Restrictions) (No. As I left the Supreme Court that evening, I took a last look around, wondering how long it might be before my colleagues and I would all assemble there once again. However, it should be noted that the manner in which law moulds perceptions of morality makes it difficult to identify situations where law is perceived as immoral. The HRA may have strengthened individual rights protection because, unlike the common law, it provides a list of rights – arguably giving greater clarity and facilitating claims. Big philanthropy is not the solution. This chapter does not provide general argument showing there is no such obligation to obey the law; rather, it hopes that a more indirect approach may suggest that the duty does not exist. This is the core of discussion whether there is a general moral obligation to obey the law. Positivist and Natural Law Theory 8. Implementation of the Regulations in practice: Throughout this discussion, it is important to remember that peaceful protest currently does not necessarily equate to ‘safe’ protest. The moral judgment in question is This thought is undermined by the influence that law has over morality and the fact that, very often, a society will be conditioned into equating what is legal with what is moral. Obligation to Obey the Law . The term“obligation” need not be used, nor its near-synonym,“duty.” One rarely finds the imperative mood. The discussion of moral obligation to obey the law, however, raises difficult questions met by various arguments. Analytics. During the Brexit process, political discussion about the HRA has been put on hold. Whilst the idea that law is being used to manipulate the ideologies of its subjects is certainly extreme, the foundation of the approach is less so. Introduction 3. This strengthens the protection of individual rights because Convention rights are broader than common law rights. Were the HRA repealed, the rights at common law would still be smaller than under the Convention but, given the common law’s continued development, would arguably exceed those existing pre-2000. From the point of view of the public, the experience is, inevitably, rather different from attending a hearing in person. Destroying the Norway/Switzerland myth. They were assisted by the fact that, prior to the pandemic, hearings by video link had been used on occasions in Privy Council appeals where the time zones were suitable and the technology was available locally. Arrangements have been made for the Justices to discuss the case in private video-conferences before, during and after the hearing. This, some commentators have argued, is lacking in some respects. Thanks to technology, perseverance, and judicial adaptability, access to the highest court in the United Kingdom has been maintained during the crisis.”. To answer, one must think about what follows from a moral obligation to obey the law being: (i) a moral obligation; (ii) a species of political obligation; (iii) a matter of obedience; and (iv) a matter of obedience to the law. 3(2) Health Protection (Coronavirus, Restrictions) (England) 2020, as amended by Reg. Additionally, it is important to remember that Article 10 ECHR freedoms have largely been unaffected by the pandemic, and as such there are many alternative vehicles to a traditional ‘physical’ protest that the public may also wish to have recourse to, such as letter-writing campaigns. Against this background, it is a good time to consider how the HRA has strengthened the protection of individual rights, and whether – and to what extent – repeal would undermine such protection. Collins, describing the marxist perception of law, puts forward the idea that law is used to materially determine the goals and aspirations of individuals and groups. Accepting this suggest that there is in almost every instance a moral obligation to obey the law. The HRA’s repeal may thus not much reduce such limited protection. So the moral obligations on which the claim that the law is just is founded are prior to and indepen-dent of the moral obligation to obey the law. Arguing by analogy using common law cases might protect certain rights better than invoking abstract rights, many of which await judicial clarification. In conclusion, there are many different forms of social responsibility that can be observed in our society – from mask-wearing, to taking to the streets to campaign for systematic change. R v Lawrance: The Right Development for Consent? Before the HRA, some claimants had to go to Strasbourg to remedy a breach of Art.8 ECHR because the common law did not, for example, provide a remedy for an unlawful strip search (Wainwright v Home Office) or confer a substantive right to privacy (Malone). If an obligation is only thought to arise in situations where one is morally bound, this article would not be worth writing as it would be paradoxical to suggest that a legal obligation could exist without a moral counterpart. In addition to the twelve justices of the Supreme Court, who also sit as the Judicial Committee of the Privy Council, and our personal and judicial assistants, it houses the Chief Executive, the Registrar and their support staff. 10 and 11 European Convention on Human Rights (ECHR) 1950, [7] Reg. The legal obligation will certainly still arise, there is natural social pressure to avoid being branded a criminal, rarely is this accompanied by deep evaluation of the justification for legislation creating the offence. Is there a Moral Obligation to Obey the Law? Did I achieve my aims? Pham emphasises that the courts should concern themselves with intensity of review rather than which abstract test to apply. Before one can know whether there is a moral obligation to obey the law, one must know what a moral obligation to obey the law is. Accordingly it would be very possible to have a legal obligation unaccompanied by a moral one. The last case in which I sat in the building was a Privy Council appeal on 17 March. But must it have these properties? At the lockdown, however, we all adapted immediately to the use of electronic bundles accessed remotely as there was no possibility of distributing hard copy bundles. The Defence Bar: Fighting to Survive Yet Again. After a summer of high-profile protesting in England amidst the ongoing Covid-19 pandemic on a range of social and political issues, this article will reflect on whether or not the existing law of protest, as modified by the exigencies of the situation, is fit for purpose. Before 1925, Germany was in a golden era of liberalism and few people would have thought it immoral to marry a Jew (as a non-Jew), however, following the enactment of the Nuremberg laws people not only saw such marriages as unlawful, but immoral as well. However, where the law is not supported by natural justice the moral obligation will not exist as the social pressure for compliance will be exclusively sourced form the illegality of the act, not its immorality. Were the Act repealed, the development of common law rights and increased political dialogue should mitigate the loss of protection. [3] The police dropped their investigation amid allegations of discrimination, after accepting that the body was indeed a political one. [8] Such an approach to derogation from the ECHR (during a state of emergency) was explicitly approved by the Council of Europe.[9]. Lord Phillips thus acknowledged in Ahmed that the principle of legality does not permit a court “to disregard an unambiguous expression of Parliament’s intention” whereas s.3 does, and Ghaidan confirms that s.3 requires courts to “depart from the unambiguous meaning the legislation would otherwise bear”. Wednesbury is inherently deferential because it arguably starts by assuming that the decision is lawful – an assumption displaced only if the decision is “so outrageous” or “so unreasonable”. In the early days of the virtual hearings counsel were not able to see all of the members of the Court but only the Justice who was speaking at any one time. The building is also a major tourist attraction, welcoming 75,832 visitors in the year to March 2020, many of whom sat in the public gallery, however briefly, when hearings were taking place. Furthermore, proportionality is not necessarily more stringent than Wednesbury. “There is no obligation to obey the law even in a good society where the legal system is just.” Table of Contents 3. I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. EPQ: Is there a moral obligation to follow the law? there is a moral obligation to do that which it imposes legal obligations to do. To suggest that humans are born with a determined perception of morality is clearly incorrect and the idea that the legal system of one’s nation influences their perceptions of morality is perfectly feasible and consistent with observable phenomena (terrorism). The Supreme Court has also continued to hand down its judgments, although during this period this has generally involved one of the Justices pre-recording an explanation of the judgment and then streaming the recording on the Court’s website. An outline of the talk is here: What is a Moral Obligation to Obey the Law? 2) (England) (Amendment) (No. Whether all legal obligations necessarily entail moral obligations depends on how one perceives the nature of the connection between law and morality, if it exists at all. De jure - obligatory authority. Gratitude: the laws play a role for us like the role played by people to whom we are obliged to be grateful. In contrast to the views of Shapiro, Alexy suggest that law is distinguished by its claims to be a determination of morality, as opposed to its aims. People have a general duty to obey the law because it is democratically decided. It is a desirable phenomenon despite being liable to moral defects. I … Legal Outsourcing Made in the Startup Nation, The Simple Maths Behind an Inevitable People’s Vote (or No Deal), A Fast-Track to Human Rights Violations and Worse, “No Mandate For Brexit” – Interview with Jolyon Maugham QC, YLJ Exclusive – Jolyon Maugham QC Interview: ‘No Mandate for Brexit’, https://www.aljazeera.com/news/2020/03/30/hungarys-pm-orban-gets-sweeping-powers-to-tackle-coronavirus/, https://www.theguardian.com/environment/2020/sep/03/extinction-rebellion-rights-peaceful-protest-threat-police, https://www.theguardian.com/environment/2020/sep/05/over-600-arrests-made-at-extinction-rebellion-protests-in-london. As against this, I suggest that it is not at all obvious that there is such an obligation, that this is something that must be shown, rather than Under proportionality, the courts start by considering whether the interference with the protected right is disproportionate. The courts would probably revert to the weaker principle of legality to avoid threatening these fundamental principles. Consider the parallel with a promise : I am under a moral obligation to return a borrowed book but that obligation can be overriden by the more important moral obligation to help a dying person. Pre-2000, a claimant had to exhaust domestic remedies before going to Strasbourg, costing £30,000 and taking 5 years (on average). We need to fund a better state. A marxist would suggest that people are happy to conform to the mysterious constraints of law without questioning its justification. Since it is trivially true that one is legally obliged to obey the law, this question must concern a moral obligation to obey the law. When accused of rewriting legislation, courts plead the implementation of Parliament’s sovereign will when enacting the HRA. Raz is a supporter of the view that law, by its nature makes moral claims. Whilst a declaration upholds Parliamentary sovereignty (in the legal constitution) by not imposing any domestic legal obligation upon Parliament, it nevertheless puts considerable pressure on the political branches to remedy the incompatibility. As a leader of this discussion, Rawls proposes that moral obligation to obey the law is upheld if the system of law is grounded in the principle of fair play. 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